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2018 DIGILAW 1676 (JHR)

Lakshman Singh Munda v. State of Jharkhand

2018-08-01

KAILASH PRASAD DEO

body2018
JUDGMENT : Heard, learned counsel for the appellants, Mr. Vishal Kumar Tiwary assisted by Ms. Kirti Saboo, Advocates and Ms. Lily Sahay, learned Additional Public Prosecutor, appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both, dated 07.07.2003, passed by the learned Additional Judicial Commissioner-II, Khunti, in Sessions Trial No. 364/1997, whereby these appellants, Lakshman Singh Munda, Raghunath Singh Munda and Chhotu Singh Munda have been convicted by the learned trial Court [or offence committed and punishable under Sections 324/149 of the Indian Penal Code and awarded sentence of rigorous imprisonment for six months. Two other accused of the present case namely, Bairam Singh Munda and Kalewar Singh Munda have died during the pendency of the trial and as such, their case has been expunged. 3. The prosecution case is based upon the jardbeyan of Sufal @ Rengta Munda, recorded by A.S.I. Singrai Soy of Sonahatu Police Station, on 10.03.1987, at 19.30 hours, in State dispensary, Sonahatu. It is alleged by the informant, that he along with Basudeo Munda were returning from river Kanchi, after washing their buffaloes and as soon as they reached near the land of Birbal Mahto, which is in the Eastern side of their village. accused Lakshman Singh Munqa, Balram Singh Munda. Kalewar Singh Munda, Ragunath Singh Munda and Chhotu Singh Munda, all having tangi in their hands, came there, from the village side and all of a sudden Lakshman Singh Munda has assaulted Basudeo Singh Munda by means of tangi, thereafter, Balram Singh Munda. Kalewar Singh Munda, Raghunath Singh Munda, Chhotu Singh Munda, have also started assaulting Basudeo Singh Munda by means of tangi, due to which Basudeo Singh Munda sustained injury and fell down on the ground. On seeing Basudeo Singh Munda, bein,g assaulted, the informant filed away to save his life. On brawl, Dalgovind Singh Munda came there but in the meantime accused persons fled away. Thereafter, the informant along with Dalgovind Singh Munda brought the injured, Basudeo Singh Mundn to the house. Basudeo Singh Munda was unconscious, since the time of occurrence. Then, the informant, Dalgovind Singh Munda, Jai ram Singh Munda, Haripado Singh Munda took the injured. Basudeo Singh Munda to the Sonahatu Government Hospital for treatment. Further. Thereafter, the informant along with Dalgovind Singh Munda brought the injured, Basudeo Singh Mundn to the house. Basudeo Singh Munda was unconscious, since the time of occurrence. Then, the informant, Dalgovind Singh Munda, Jai ram Singh Munda, Haripado Singh Munda took the injured. Basudeo Singh Munda to the Sonahatu Government Hospital for treatment. Further. It has been alleged by the informant, that with an intention to kill Basudeo Singh Munda, the accused persons have assaulted Basudeo Singh Munda by means of tangi on his head, neck, right hand and both arm-pits. It has been further alleged, that there is a dispute regarding partition of land between the parties and for which, a case is pending before the Court. The informant has further alleged, that the accused persons have assaulted Basudeo Singh Munda by means of tangi with intention to kill him. 4. On the basis of the written report of informant, the Police instituted First Information Report bearing Sonahatu P.S. Case No. 14 of 1987, dated 10.03.1987 under Sections 148, 149, 307, 324 and 341 of the Indian Penal Code against five accused persons. 5. After investigation the police has submitted charge-sheet vide charge-sheet No. 21 of 1987 dated 30.05.1987 against all the five named accused persons but two of the accused persons namely. Balram Singh Munda and Kalewar Singh Munda have died during the pendency of the trial and as such their case has been dropped vide orders dated 05.07.1997 and 25.05.1998. 6. The cognizance of the offence has been taken vide order dated 01.07.1987 and the case has be en committed to the Court of Sessions vide order dated 05.07.1997. 7. The charge has bee n framed against three accused person namely. Lakshmam Singh Munda, Raghunath Singh Munda and Chhotu Singh Munda on 25.06.1998, under Sections 307/149 of the Indian Penal Code, to which the accused-appellants have pleaded their innocence and thus they were put under trial. 8. The prosecution has examined three witnesses to p rove its ca se beyond all reason able doubts but no documentary evidence has been brought on record by exhibiting in this case. Suffal Singh Munda, informant of the case, has been examined as P.W. 1, Jay Singh Munda, a hearsay witness, has been examined as P.W. 2, Basudeo Singh Munda, who is injured in this case, has been examined as Court witness No.1, under Section 311, Cr.P.C. 9. Suffal Singh Munda, informant of the case, has been examined as P.W. 1, Jay Singh Munda, a hearsay witness, has been examined as P.W. 2, Basudeo Singh Munda, who is injured in this case, has been examined as Court witness No.1, under Section 311, Cr.P.C. 9. After closure of the prosecution evidence, the statements of the appellants have been recorded under Section 313, Cr.P.C. on 08.05.2003 and 02.06.2003; to which appellants/accused persons have denied the evidence levelled against them. 10. After hearing the parties and from perusal of the record, the learned trial Court has passed the impugned judgment of conviction and order of sentence, whereby these appellants have been convicted under Sections 324/149 of the Indian Penal Code. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by these appellants, assailing the impugned judgment of conviction and order of sentence, which is being heard by this Hon'ble Court. 11. Heard, learned counsel for the appellants, Mr. Vishal Kumar Tiwary assisted by Ms. Kirti Saboo, Advocates. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence has wrongly been passed without scrutinizing the evidence available on record and it cannot sustain in the eyes of law and thus, is fit to be set aside. Learned counsel for the appellants has further submitted, that from perusal of the evidence of the informant. Sufal Singh Munda in paragraph-6 of his cross-examination, has admitted, that for the occurrence of the same day, Lakshman Singh Munda has filed a case against the informant and Basudeo Singh Munda, in which it has been alleged, that hand of Balram Singh Munda has been chopped off. Learned counsel for the appellants has further submitted that since, there is a case and counter-case between the parties and there is an allegation, that the hand of Balram Singh Munda has been chopped off, from the side of the accused. The First Information Report in the present criminal is itself suspicious, as the same does not disclosed about the injury caused upon the accused persons. The First Information Report in the present criminal is itself suspicious, as the same does not disclosed about the injury caused upon the accused persons. Learned counsel for the appellants has relied upon a judgment as reported in (2002) 7 SCC 210 in the case of Subramani & others v. State of Tamil Nadu, where it has been held that "failure to explain injuries on accused-that injuries were simple, held, does not relieve the prosecution of its obligation-on failure, Court can draw inference that prosecution has not presented the true version of the occurrence". Learned counsel for the appellants has further submitted that P.W. 2 Jay Singh Munda is a hearsay witness and on the basis of disclosure made by P.W.I, he got knowledge of the occurrence. Learned counsel for the appellants has further submitted, that Basudeo Singh Munda is victim of this cqse, who has been examined under Section 311, Cr.P.C. by the learned trial Court as C.W.1 and has also admitted in para-6 of his cross-examination, that for the same occurrence, First Information Report has been lodged by Lakshman Singh Munda against him and Sufal Singh Munda, under Sections 307 and 324 of the Indian Penal Code, in which there is an allegation, that hand of Balram Singh Munda has been chopped off with intention to kill. Learned counsel for the appellants has further submitted, that in the murder case of the Lakshman Singh Munda, Basudeo Singh Munda and others have been convicted, in Sessions Trial No. 690/1996. Learned counsel for the appellants. Mr. Vishal Kumar Tiwary assisted by Ms. Kirti Saboo, Advocates has further submitted, that the Investigating Officer and the medical Officer have not been examined in this case, nor the First Information Report or the injury report have been exhibited in this case and as such, conviction of the appellants cannot sustain in the eyes of law, under Sections 324 and 149 of the Indian Penal Code. Learned counsel for the appellant has further submitted that in absence of any legal evidence appellants cannot be convicted under Sections 324 and 149 of the Indian Penal Code. 11. Learned counsel for the State, Mrs. Learned counsel for the appellant has further submitted that in absence of any legal evidence appellants cannot be convicted under Sections 324 and 149 of the Indian Penal Code. 11. Learned counsel for the State, Mrs. Lily Sahay, learned Additional Public Prosecutor has submitted, that impugned judgment of conviction and order of sentence is based on material available on record and the learned trial Court has rightly convicted the appellants under Sections 324 and 149 of the Indian Penal Code, as there has been allegation, that they have assaulted Basudeo Singh Munda by means of tangi, which is a lethal weapon and as such, defence case comes under Sections 324 and 149 of the Indian Penal Code. Learned counsel for the State, Mrs. Lily Sahay, Additional Public Prosecutor has further submitted, that impugned judgment of conviction and order of sentence is based on material available on record and this Court may not interfere at this stage. 12. Heard, learned counsel for the appellants, Mr. Vishal Kumar Tiwary assisted by Ms. Kirti Saboo, advocates and learned counsel for the State, Mrs. Lily Sahay, learned Additional Public Prosecutor and from perusal of the record, that is evidence P.Ws. 1, 2 and Court witness No.1 and in absence of any documentary evidence, this Court is of the opinion, that here is a case and counter-case between the parties. The prosecution has failed to explain injuries caused upon the accused. Learned counsel for the appellants has rightly placed the judgment as reported in (2002) 7 SCC 210 (supra), where the prosecution cannot be relieved even if, the injury is simple in nature upon the accused and the same has not been explained in the First Information Report, the prosecution is not relieved for non-explanation of the injury, the adverse inference may be drawn in favour of the prosecution. Considering these aspects that prosecution has not exhibited the First Information Report and from perusal of the First Information Report, which is on record, this Court is of the opinion the prosecution has not explained the injury, which was found on the person of Balram Singh Munda, this Court is of the opinion that the prosecution has not come up with clean hands in the First Information Report, this Court is also of the opinion that nor any exhibit nor any material were produced before this Court, such as First Information Report or the injury report, to convict the appellants, under Sections 324 and 149 of the Indian Penal Code. The Investigating Officer and Medical Officer have also not been examined. Thus, this Court is of the opinion, as discussed above that impugned judgment of conviction and order of sentence cannot sustain in the eyes of law. 13. From the aforesaid discussion made above, this Court is of the considered view that the impugned judgment of conviction and order of sentence, both, dated 07.07.2003, passed by the learned Additional Judicial Commissioner-II, Khunti, in Sessions Trial No. 364/1997, arising out of Sonahatu P. S. Case No. 14 of 1987, corresponding G. R. Case No. 113 of 1987, is not sustainable in the eyes of law and thus, is hereby set aside. 14. Accordingly, the instant appeal stands allowed. 15. The appellants, who are on bail are discharged from the liability of their bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the Court concerned at once. Appeal allowed.